4 For the period covering 26 through 27: Findings a. The concentration ratios exhibit a moderate concentration in the Michigan medical malpractice insurance market. b. The top six medical malpractice insurance carriers are responsible for 76.2% of the total premium in the state in 26 and 75.4% in 27. c. Claims experience based on Michigan's Forms A and B show trends such as: Claims frequency continues to decline. Closure lags slightly increased. The percentage of resolutions relating to settlement by parties continues to decrease and the percentage of resolutions relating to trial verdicts continues to increase.

5 CERTIFICATION OF THE STATE OF COMPETITION IN THE MICHIGAN PROFESSIONAL LIABILITY INSURANCE MARKET I hereby certify that, based on the evaluation ofthe data required by Section 2477d of the Insurance Code of 1956, 218 PA 1956, MCL d, a reasonable degree of competition exists at this time, with respect to the Michigan medical malpractice insurance market. Ken Ross Commissioner -lb-,ii O Date _

6 Office offinancial and Insurance Regulation, State ofmichigan Michigan Medical Professional Liability Insurance Market October 29 Purpose The State of Michigan, Office of Financial and Insurance Regulation (OFIR) has engaged the services of AMI Risk Consultants, Inc. (AMI) to perform the following for the evaluation of the Michigan Medical Professional Liability Insurance Market for years 26 and 27, as required by MCL d: Analyze the confidential medical malpractice claims data reported on Forms A and B. Describe the condition of the medical malpractice insurance market in Michigan. Make recommendations concerning the medical malpractice insurance market in Michigan. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 3

7 Distribution and Use This report is being provided for the use of OFIR. It is understood that OFIR is expected to distribute this report to the various policy makers and stakeholders in the state, potentially including the Governor and the Michigan Legislature. This distribution as well as any further distribution to the makers of public policy and the various stakeholders in the healthcare industry in the State of Michigan is hereby granted. When this report is distributed, the report should be distributed in its entirety. AMI is available to discuss with OFIR any questions about this report that may arise. Reliance and Limitations In performing the analysis, we relied without audit or verification on the following information furnished by OFIR: Michigan Medical Professional Reported Claims Database (Form A) Michigan Medical Professional Closed Claims Database (Form B) A.M. Best Five-year Trend Study for the Top 5 Medical Malpractice Writers in the State ofmichigan Medical malpractice insurance carrier rate data as requested by AMI, via the OFIR commissioner's inquiry Evaluation of the Michigan Medical Professional Liability Insurance Market 2-25, November 28 by Pinnacle Actuarial Resources, Inc. While performing the study, we spoke with Ms. Marlene A. Bukoski of OFIR. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 4

8 Conclusions Observations and Trends suggested by the recent data on Forms A and B and Other Sources Our analysis of Forms A and B, the A.M. Best and rate data that were voluntarily provided by a number of medical malpractice insurance carriers, at the request of AMI via the OFIR commissioner's inquiry, have resulted in the following observations: a. Total claims reported by report year continue to decline. (page 9) b. The counties with the largest average claim size continue to be Calhoun, Ingham, Kalamazoo, Macomb, Oakland, Washtenaw, and Wayne. (page 1) c. For 26 and 27, Allopathic Physicians (MD) have the most number of reported claims. (page 11) d. Total closed claims by closure year continue to decrease. (page 12) e. Average closure lag for a claim from 2 to 27 is almost 4 years and it has slightly increased in more recent years, except over the period 26 to 27 where average closure lag decreased. (page 13) f. There is a positive correlation between claim severities and closure lags. An increasing trend can be seen for average allocated loss adjustment expenses (ALAE) as closure lag increases. (page 14) g. For 26 and 27, 77% of total claims were settled by parties, following the historical trend. (page 15) h. For 26 and 27, settlement by mediation has the highest average indemnity and trial verdict has the highest average loss adjustment expenses (LAE). (page 16) i. For 26 and 27, the counties of Genesee, Ingham, Kalamazoo, Kent, Macomb, Oakland, Saginaw, Sanilac, Washtenaw, and Wayne account for 68.9% ofall closed claims statewide. (page 17) j. For 26 and 27, most claims came from the Southeastern Lower Peninsula region. (page 17) P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 5

9 Conclusions k. Forty-six percent of the total number of claims in 26 and 27 (continued) are constituted by claims from Death and Permanent-Significant injuries. (page 18) 1. With the exception of the -1 injured's age group, a trend can be observed where closed claims in 26 and 27 are increasing to a peak at the 51-6 age group, then decreases thereafter. (page 19) m. For 26 and 27, 49% of total claims by type of injury came from Delay in Diagnosis and Treatment Technique. (page 2) n. For 26 and 27, 52% of total claims by injury location came from the Physician's Office and Operating Suite. (page 21) o. For 26 and 27, American Physicians Assurance Corporation and ProNational Insurance Company account for 72.7% of the total number of reported claims. (page 22) p. For 27, the Herfindahl-Hirschman Index (HHI) for Michigan is 1,271, indicating a moderately concentrated market. (page 23) q. From 23 to 27, the average total market share by written premiums of the top six medical malpractice insurance carriers in the state is 75.8%. (page 23) r. From 23 to 27, loss ratios of the top six medical malpractice insurance carriers as well as the statewide average show a decreasing trend. (page 24) s. There is an increasing trend in the average premium discounts offered by a sample of medical malpractice insurance carriers. (page 25). Premium discounts are defined as the percentage of how much lower are the actual premiums charged by the insurance carrier relative to the manual rates. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 6

10 Conclusions (continued) AMI recommends a more favorable environment for medical malpractice insurance in Michigan could be implemented by: a. Encouraging the legislature to implement settlement provisions to require doctors and patients to use resolution approaches such as mediation and other alternative dispute resolution (ADR) methods. b. Encouraging the legislature to institute a Patient's Compensation Fund in Michigan similar to Indiana, Louisiana, Florida, Wisconsin, and South Carolina. c. Conducting a study by OFIR to determine the effectiveness of mediation panels currently in Michigan. d. Creating an automated process by OFIR to collect medical malpractice data and more clearly define fields to obtain more useful data. Condition ofthe Medical Malpractice Insurance Market in Michigan In order to evaluate the condition of a given market, the Structure-Conduct Performance (SCP) paradigm is considered by many economists to be an invaluable tool. This model indicates that market structure affects market conduct, which in tum affects market performance. Market structure is determined by the number and size distribution of buyers and sellers (concentration), extent of barriers to entry into the market, cost structures, availability of information to buyers and sellers, and the degree of product differential. The usual way of measuring the market structure is by using measures of market concentration, which focuses on the number and size distribution of firms. A common way to measure market concentration is to use the Herfindahl-Hirschman Index or HHI. HHI is calculated by getting the sum of the squares of the market shares of the competing firms. Its value ranges from close to zero to 1,, indicating almost perfect competition and monopoly, respectively. The closer a market is to being a monopoly, the higher its concentration, which indicates lower competition. The u.s. Department of Justice categorizes markets as follows: HHI less than 1,: competitive marketplace HHI between 1, and 1,8: moderately concentrated marketplace HHI greater than 1,8: highly concentrated marketplace. There is moderate market concentration in Michigan, as it had an HHI of 1,271 in 27, a slight decrease from 1,323 in 26. From 23 to 27, the average total market share by written premiums of the top six medical malpractice insurance carriers in the state is 75.8%. Also, the minimum surplus requirement does not pose a barrier to market entry. P:\MichiganMedical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 7

11 Data Sources In performing our claims analysis, we relied on Michigan's specific Forms A and B. This year, OFIR compiled this data into an electronic format and AMI performed an analysis of this data. Although the National Practitioner Data Bank's (NPDB) Public Use Data File contains similar claim information as in Forms A and B, we did not use the file. When comparing the two data bases, we concluded that information from Forms A and Bare more robust and does not have as many limitations'. We also used data from the A.M. Best report for medical malpractice insurance in Michigan, Five-year Trend Study for the Top 5 Medical Malpractice Writers, to assess total written premiums statewide and total market share of the top medical malpractice insurance carriers. We also requested OFIR to contact the top six medical malpractice insurers listed in the A.M. Best report to obtain company specific information. Three companies voluntarily provided premium discounts and other rate data. We used that data to show the trend in average premium discounts offered by those companies. In showing the historical trends prior to 26, we utilized data from Pinnacle Actuarial Resources, Inc.' s report entitled "Evaluation of the Michigan Medical Professional Liability Insurance Market 2-25, dated November 28." P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 8

12 Discussion and Analysis Total Reported Claims by Report Year Reported claims have demonstrated a steady decline from 2 to 27. Figure 1 shows this steady decline, with the exception of report year 24. For the period 2-27, this trend is an average of 18.9% annual decrease from 1,142 claims in 2 to 263 claims in 27. Exhibit I shows reported claims decreased from 26 to 27, from 473 to 263 claims, respectively, or a 44.4% decrease, continuing the historical trend. Given the exposure (by total number of patients statewide) does not decrease each year, this steady decline is an improvement in the number of insured claims reported during the period. Figure 1 - Reported Claims by Report Year Michigan Office of Financial and Insurance Regulation Reported Claims by Report Year 1,2 r -. 1, 8 -REPORTED CLAIMS Data per Exhibit I Reported Claims by County Reported claims were summarized by county, as shown in Exhibit II. The counties with the largest claim sizes, Le., Calhoun, Ingham, Kalamazoo, Macomb, Oakland, Washtenaw, and Wayne, all follow a similar trend to the statewide average, as shown in Figure 2 {page 1). These counties constitute 57.3% of the total claims. Barry, Bay, Genesee, Hillsdale, Jackson, Ogemaw, Sanilac, Tuscola, Van Buren, Washtenaw, Wayne, and Wexford all outperformed the 44.4% statewide decrease in claims from 26 to 27. Only Branch, Grand Traverse, Gratiot, Marquette, Mecosta, and Muskegon have increased in claims during the same period. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 9

14 Discussion andanalysis (continued) Reported Claims by Profession Reported claims are summarized by profession of the healthcare provider, as shown in Exhibit III and Figure 3 (page 12). Allopathic Physicians (MD) have the most number of reported claims, totaling 3,184 claims for all years combined (2-27), constituting 59% ofthe total 5,4 reported claims. This profession also follows the overall trend of the total reported claims, with a 43.3% decrease from 268 claims in 26 to 152 in 27. Total Closed Claims by Closure Year Closed claims show a trend similar to reported claims. Total closed claims decreased between 2 and 27 from 1,354 to 496, respectively, a decrease of 63.4% and an average annual decrease of 13.4%, as shown in Figure 4. Exhibit IV - A shows the claim counts in more detail. Closed claims decreased by 9.65% from 549 in 26 to 496 in 27, continuing the historical trend. Figure 4 - Closed Claims by Closure Year Michigan Office of Financial and Insurance Regulation Closed Claims by Closure Year 1,6 1, ,2 1, -CLOSED 8 CLAIMS o Data per Exhibit IV-A Exhibit IV - B shows the closed claim counts, total indemnity, total allocated loss adjustment expenses (ALAE), total paid amount, and severity for years 26 and 27. For year 27, the total paid amount increased by 8.2%, while severity increased by 19.7% from $73,535 to $88,37. ALAE as a percentage oftotal paid amount decreased by 4.2%. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 11

16 Discussion and Analysis (continued) Closed Claims by Closure Lag Closed claims are summarized by closure lag, defined as the difference between the incident year and the closure year. Exhibit V - A shows that the average closure lag for a claim from 2 to 27 is 4 years, and it has slightly increased in more recent years. However, average closure lag decreased from 4.92 years in 26 to 4.52 years in 27, contrary to the historical trend. This delay plays an important role in how insurance companies approach reserves for unpaid claims liabilities, which can still be uncertain years after a claim is reported. Figure 5 shows the distribution ofclaims by closure year and closure lag (page14). There is a positive correlation between claim severities and closure lags, both are increasing. Exhibit V - C and Figure 6 show this correlation. Figure 6 - Severity by Closure Lag Michigan Office of Financial and Insurance Regulation Severity by Closure Lag $14, $12, $1, $8, $6, -SEVERITY $4, $2, $ < Year Years Years Years Years Years Data per Exhibit v-c P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final. doc Page 13

18 Discussion For years 26 and 27, an increasing trend can be seen for average ALAE as and closure lag increases, which indicates that ALAE increases severity more than Analysis indemnity does, as shown in Exhibit V - D and Figure 7. (continued) Figure 7 - Average Indemnity and ALAE by Closure Lag Michigan Office offinancial and Insurance Regulation Average Indemnity and ALAE by Closure Lag Weighted Average of26 and 27 by Claim Counts $7, $6, $5, $4, $3, $2, -AVERAGE INDEMNITY o AVERAGE ALAE $1, $ < Year Years Years Years Years Years Data per Exhibit V-D P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 15

19 Discussion and Analysis (continued) Closed Claims by Resolution Tvpe From 26 to 27, most claims were settled by parties, continuing the historical trend. Claims in 26 and 27 amount to a total of 72 claims, 77. of the total number of claims settled as shown in Exhibit VI - A and in Figure 8. Figure 8 - Total Closed Claims by Resolution Type Michigan Office of Financial and Insurance Regulation Total Closed Claims by Resolution Type Closure Years 26 and 27 % II Settled by Mediation Settled by Parties Trial Verdict Arbitration Data per Exhibit VI-A Mediation shows an increasing percentage of closed claims between 26 and 27. There is a decrease in settlements by parties and an increase in trial verdicts, as shown in Figure 9 (page 17). An increase in trial verdicts may explain the slightly higher than average closure lags in 26 and 27, shown in Exhibit V A. Exhibit VI - B, shows the average indemnity and ALAE for each resolution type for years 26 and 27. For those with a significant number of closed claims, settlement by mediation has the highest average indemnity, while trial verdict has the highest average ALAE. For the claims settled by trial verdict, 77. of the total paid amount comes from ALAE for year 26, and 83.7% for year 27. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 16

21 Discussion andanalysis (continued) Closed Claims bv County Closed claims were summarized by county for closure years 26 and 27, as shown in Exhibit VII. Genesee, Ingham, Kalamazoo, Kent, Macomb, Oakland, Saginaw, Sanilac, Washtenaw, and Wayne each had more than 2 closed claims for 26 and 27, accounting for 68.9% ofthe total number of closed claims statewide. Of these counties, Ingham, Macomb, Oakland, and Washtenaw experienced a decrease in average total paid amount from 26 to 27. The rest experienced an increase. Kent and Sanilac increased their average total paid amount from 26 to 27 by 11. and 126.3%, respectively. Of these two counties, Sanilac's average ALAE as percentage of average total paid went up from 74.2% to 89.2%. Closed Claims bv Region Exhibit VIII shows closed claims summarized by region for closure years 26 and 27. Michigan was divided by region as follows: Upper Peninsula Northern Lower Peninsula - Alcona, Alpena, Antrim, Arenac, Benzie, Charlevoix, Cheboygan, Clare, Crawford, Emmet, Gladwin, Grand Traverse, losco, Isabella, Kalkaska, Lake, Leelanau, Manistee, Mason, Mecosta, Midland, Missaukee, Montmorency, Oceana, Ogemaw, Osceola, Oscoda, Otsego, Presque Isle, Roscommon, and Wexford Western Lower Peninsula - Allegan, Barry, Berrien, Branch, Cass, Ionia, Kalamazoo, Kent, Montcalm, Muskegon, Newaygo, Ottawa, S1. Joseph, and Van Buren Central Lower Peninsula - Calhoun, Clinton, Eaton, Gratiot, Hillsdale, Ingham, Jackson, Lenawee, and Shiawassee Eastern Lower Peninsula - Bay, Genesee, Huron, Lapeer, Saginaw, Sanilac, S1. Clair, and Tuscola Southeastern Lower Peninsula - Livingston, Macomb, Monroe, Oakland, Washtenaw, and Wayne. Most claims come from the Southeastern Lower Peninsula, totaling 435 claims or 47.5% of the statewide total. Although most of these claims come from Wayne County, from 26 to 27, this region decreased in average total claims paid by 6.9% and average ALAE per claim went up by $2,. The Western Lower Peninsula increased the most in average total claims paid from 26 to 27, an increase of 65.4%, followed closely by the Eastern Lower Peninsula at 53.8%. Both increases are due to the more than doubling of average indemnity. These playa big role in increasing the average total claims paid for the whole state. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 18

22 Discussion andanalysis (continued) Closed Claims by Severity ofinjury Closed claims were summarized by severity of injury for closure years 26 and 27. Forty-six percent of the total number of claims are constituted by claims from Death and Permanent-Significant injuries, or 477 out of 132, as shown in Figure 1. Figure 1 - Closed Claims by Severity of Injury 35 Michigan Office of Financial and Insurance Regulation Closed Claims by Severity of Injury Closure Years 26 and CLOSED CLAIMS 1 5 o <' c<' <'. <' #. # # -., #. ' s:.. v..p... 'fo V (J # c<!'<;{ <\(J <\ -q, ro-(j -q,,(j -q,,(j.o. <\ Data per Exhibit IX Temporary-Minor, Permanent-Major and Permanent-Grave experienced a huge increase in average total paid amount from 26 to 27. However, Permanent-Grave's 171.8% increase does not represent the overall trend due to the very few claims in 27. Permanent-Significant and Death, despite having the most number of claim counts, both have little change in average total paid. Permanent Significant had a decreased ALAE percentage oftotal paid, down by 7.6%. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 19

23 u... Discussion and Analysis (continued) Closed Claims by Injured's Age We prepared Exhibit X - A and Exhibit X - B to show the closed claims as summarized by injured's age group and age, respectively. With the exception of the -1 age group, a trend can be seen where closed claims are increasing up to a peak of 2 claims for the 51-6 age group for 26 and 27, then decreases thereafter. This trend, however, depends on the total population of the age groups identified. This can be seen in Figure 11. Figure 11 - Closed Claims by Age Group 25 Michigan Office offinancial and Insurance Regulation Closed Claims by Age Group Closure Years 26 and CLOSED CLAIMS 1 5 o I II o<$' l:::,>-l:::,,,');l:::, v,.,l:::,,>-l:::, Vl:::, l:::, '::\I).l:::, V'bl:::, V l:::,l:::,,, b 'b., Data per Exhibit X-A Average total paid increased dramatically for the -1, 41-5, and 81-9 age groups, while it decreased for Newborn and the 71-8 age group. Average total paid peaks in the 31-4 age group, where ALAE percentage decreased by 1.9% from 26 to 27. Figure 12 - Average Total Paid by Age Group S12,ooo Michigan Office of Financial and Insurance Regulation Average Total Paid by Age Group Closure Years 26 and 27 sioo.ooo sso.ooo sso.ooo S4,ooo S2,Ooo SO f:j f!'"......, , eo......, <;;{ 'V'1"J ';,. 'S" b '\ " Ie '\ 'b" o,"" Data per Exhibit X-A P:\Michigan Medical Malpractice Review\MI_Med_Mal_29 _Report_Final. doc Page 2

25 Discussion andanalysis (continued) Closed Claims by Injury Location Exhibit XII shows the closed claims as summarized by injury location. For 26 and 27, 52/ of total claims by injury location came from the Physician's Office and Operating Suite, with 287 and 244 closed claims, respectively. Figure 14 - Closed Claims by Type of Service 35 Michigan Office of Financial and Insurance Regulation Closed Claims by Injury Location Closure Years 26 and ,.._ 1 15 I I _ sol3l U _[j _LI '2 e e. e a 8 e e ::s!.: g...s:: o ] a >- e-, C ti'l >- ti'l " e-, u u. ',=... i' -c &2.!3.!3 e.. 13.s Q) Z 8. E5'Vi u g ::; >- E U w. ]. Q.. -CLOSED CLAIMS Data per Exhibit XII From 26 to 27, Operating Suite's average total claims paid increased by 9.2% and ALAE's percentage decreased by 3.3/. Physician's Office's average total claims paid decreased by 2.5% and ALAE percentage increased by 4.5% from 26 to 27. Labor and Delivery Room and Other types of service both experienced a large increase in average total claims paid amount from 26 to 27; 154.6% and 21.9%, respectively. Labor and Delivery Room had a 34.9/ decrease in ALAE's percentage over the same period and Other types of service experienced a 32.3% decrease. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final. doc Page 22

26 Discussion andanalysis (continued) Closed Claims by Source o(expense Payments Exhibit XIII shows the closed claims as summarized by source of expense payments. Medicaid experienced an increase in average total claims paid by 17% and only Medicare experienced a decrease by 41.. ALAE's percentage of average total claims paid for Medicaid decreased by 59.4%, from 85.8% in 26 to 26.4% in 27. The huge increase in average total claims paid for Medicaid is due to the 1,296/ increase in average indemnity payments from $7,78 per claim to $17,621 per claim. Reported Claims by Attornev/lnsurance Company Exhibit XIV shows the number of claims reported by attorney/insurance company. American Physicians Assurance Corporation and ProNational Insurance Company have the most number of reported claims in 26 and 27 combined, 272 and 257, respectively. The combined total reported claims ofthe two companies comprise 72.7% ofthe 728 reported claims of all carriers in 26 and 27 combined. The number of reported claims decreased by 41.9% for American Physicians Assurance Corporation and by 39.4% for ProNational Insurance Company, respectively, from 26 to 27, not far from the statewide trend where reported claims decreased by 44.4% over the same period, as shown in Exhibit I. P:\Michigan Medical Malpractice Review\MI_Med_Mal_29_Report_Final.doc Page 23

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